dissenting, with whom CARDINE, Justice, joins.
As set forth in the majority opinion, the facts in this case are simple and uncomplicated. Appellee architect made a serious design mistake. Appellant told him about it, but appellee told appellant to continue with the construction including the mistake. Appellant did so. Later, appellee told appellant to redo the work for the purpose of correcting the mistake. Appellant did so and now seeks to be paid for the extra work.
I fault the majority opinion in three respects: (1) it misinterprets the nature of the cause of action; (2) it is inconsistent in its reasoning; and (3) it fails to recognize the waiver of the requirement for prior written authorization of a change.
NATURE OF THE CASE
The majority opinion improperly considered this action to be on a contract between the owner and contractor-subcontractor in which “change orders” were required to have prior written approval.
The owner was not made a party to this lawsuit. Appellant is not seeking payment from it. Appellant recognized that the extra work was not a result of a change in that for which the owner originally expected 1 but was a result of appellee’s mistake in not directing performance to that which the owner originally expected. The owner could certainly object to payment to appellant for the mistake made by one who was being paid by the owner to not make mistakes and who was being paid to see that others involved in the project did not make mistakes. The lawsuit was for value received by the appellee for the extra work. This being so, neither the agency relationship between owner and appellee nor the procedure in the owner’s and contractor’s-subcontractor’s agreement requiring written directions in a change order have any relevance to the matter. Appellee was not acting on behalf of anyone but himself when he asked appellant to redo the windows. The owner would not be asking for a “change” in the original request to reestablish the historical appearance of the building. Appellee was obligated to plan the restoration. He made a mistake in doing so. He was obligated to correct it. Only he received value from the extra work performed by appellant.
Accordingly, appellant’s legal action is against appellee for value received. The “change order” provision of the contract was for the benefit of the owner. Snowball v. Maney Bros. & Co., 39 Wyo. 84, 270 P. 167, 61 A.L.R. 199, reh. denied 271 P. 875 (1928); Headley v. Cavileer, 82 N.J. 635, 82 A. 908 (1912). It is not pertinent to this cause of action. Nor does the agency relationship between the owner and appel-lee have any application to the cause of *1047action against appellee for the value of services rendered by appellant to appellee for himself and not rendered to or for appellee’s principal, the owner.
INCONSISTENT REASONING
The majority opinion asserts that appel-lee had the power to order the refabrication and thus “bind” the city to pay appellant for appellee’s mistake — subject to first presenting a change order. This assertion is founded on a principal-agent relationship between the city and appellee, which it is said relieves appellee from any responsibility for his mistake. The majority opinion buttresses this analysis by referring to language in the subcontract to which appellant was a party requiring appellant to perform “according to the plans and specifications” of appellee and to appellee’s “full satisfaction.”
Yet, with all of this authority in appellee, the majority opinion does not recognize that the work done to correct appellee’s mistake was actually doing the work to appellee’s “full satisfaction.” Nor does the majority opinion recognize the inconsistency of this power to “bind” the city with the lack of power to waive the requirement for a prior written order to correct appellee’s mistake. And this brings us to my third disagreement with the majority opinion.
THE REQUIREMENT FOR PRIOR WRITTEN AUTHORIZATION FOR A CHANGE WAS WAIVED
The Nebraska case quoted by the majority opinion, Erskine v. Johnson, 23 Neb. 261, 36 N.W. 510 (1888), to substantiate the authority of appellee to “bind” the city in authorizing a change order, stated at 36 N.W. page 512:
“Considerable stress is laid by the attorney of Erskine upon that portion of the written contract which provides that ‘no work of any kind shall be considered as extra unless expressly contracted for in writing before its commencement.’ This provision may be waived by the parties by any contract, either verbal or written, subsequently made, which modified its condition. * * * ”
This is the general rule:
“The provision in a private building or construction contract (whether between a property owner and a contractor or between a general contractor and a subcontractor) that alterations or extras must be ordered in writing can be avoided by the parties to the contract where their words, acts, or conduct amount to a waiver, modification, rescission, abrogation, or abandonment of such provision, or where the owner (or the general contractor in the case of a subcontract) by his acts or conduct is estopped to rely on it. * * * ” Anno., Effect of stipulation, in private building or construction contract, that alterations or extras must be ordered in writing, 2 A.L.R.3d 620, 648 (1965).
See Snowball v. Maney Bros. & Co., supra.
When appellee directed appellant to do the extra work, appellant was told to keep track of costs and expenses. Appellant had performed extra work at other times on the project without prior written approval — and he had no trouble securing payment. He testified:
“As Reiman Construction Co. asked me to perform extra work, I would invoice it. They would pay me for the invoices. Every extra that I performed up to the time of this discrepancy was paid for.”
The habitual disregard of the requirement amounted to a waiver of it. Harrington v. McCarthy, 91 Idaho 307, 420 P.2d 790 (1966); Howard J. White, Inc. v. Varian Associates, 178 Cal.App.2d 348, 2 Cal.Rptr. 871 (1960); Arc & Gas Welder Associates, Inc. v. Green Fuel Economizer Co., 285 F.2d 863 (4th Cir.1960), cert. denied 366 U.S. 919, 81 S.Ct. 1095, 6 L.Ed.2d 241 (1961). And, accepting the majority opinion’s recognition of the authority of appel-lee to “bind” the city, his direction to do the work amounted to a waiver of the requirement for a written change order.
SUMMARY
In summary, I believe the requirement for prior written authorization for the ex*1048tra work was waived by prior habitual disregard of it; and if appellee had agency authority from the owner to order the refa-brication, he had authority, and exercised it, to waive the requirement for prior written authorization for the extra work. But, I would reverse the case on the basis that the requirement for prior written authorization for extra work was for the benefit of the owner and that this action is against the appellee architect, not the owner, for value received from work to correct the appellee’s mistake, wherefore the requirement for prior written authorization is not relevant. Equity and justice place the burden to pay for appellee’s mistake upon ap-pellee — particularly when the mistake was called to his attention at a time when it could have been corrected without extra work, and he directed the work to be done including the mistake only to later direct correction of his mistake.
. The owner expected the building to be renovated into its original appearance as a historical site. Appellee was employed as an architect to accomplish this purpose.